German-American Ins. Co. of N.Y. v. Buckstaff
| Decision Date | 24 October 1893 |
| Citation | 56 N.W. 692,38 Neb. 135 |
| Parties | GERMAN-AMERICAN INS. CO. OF NEW YORK v. BUCKSTAFF. |
| Court | Nebraska Supreme Court |
1. Oral agreements of attorneys, entered into out of court, to submit matters in suit to arbitration, will not be enforced when objection is made thereto. The only competent proof to establish an agreement made by an attorney in regard to the disposition of a cause is the evidence of the attorney himself, his written agreement signed and filed with the clerk, or an entry thereof upon the records of the court.
The policy contains a provision for the appointment of arbitrators to determine the amount of the loss. Under this provision, arbitrators were appointed by each of the parties, who examined the property, and made a report as to the amount of the loss. The appointment was authorized by the policy, and did not depend for its validity on the oral agreement of the attorneys. In my view, therefore, the point decided is not applicable to the facts.
2. Where there is no competent evidence of an agreement of the parties to an action to submit their matters of difference to arbitrators, it is error to submit the question of an award to the jury.
3. Whether a building covered by a policy of insurance is or is not vacant and unoccupied is a question of fact, to be determined by the jury under proper instructions of the court.
Error to district court, Lancaster county; Chapman, Judge.
Action on a policy of fire insurance by John A. Buckstaff against the German-American Insurance Company of New York. Plaintiff had judgment, and defendant brings error. Reversed.Harwood, Ames & Kelly, for plaintiff in error.
Chas. O. Whedon, for defendant in error.
The defendant in error, on and prior to the 21st day of October, 1887, was the owner of the Metropolitan Hotel building, situated on lots 16, 17, and 18, in block 45, in the city of Lincoln, upon which there were in force policies of insurance against loss by fire in the following named companies and amounts: The German-American Insurance Company, $1,500; the Liverpool & London & Globe Insurance Company, $3,000; and the Fireman's Fund Insurance Company, $1,500. On the night of October 21st, a fire occurred, and the building covered by the policies was partially destroyed. Proofs of loss were duly made by the insured, and, the damages not being paid, the defendant in error brought suit against each of the companies. The policy in suit contained the following stipulations: The defendant answered, setting up the above conditions of the policy, and alleged, in substance, that at and prior to the time of the fire the building was vacant and unoccupied without the knowledge and consent of the defendant; that, when the policy was issued, the building was used as an hotel, and that shortly before the loss it ceased to be used for that purpose, and, without the knowledge or consent of the company, was used for the purpose of storing furniture and articles of personal property, including bedticks containing straw, hay, and other combustible materials, thereby increasing the risk. The answer further avers that the total damage to the building by reason of the fire did not exceed $1,500, and sets up the existence, at the time of the fire, of a policy on this building for $1,500, issued by the Fireman's Fund Insurance Company, and also a policy for $3,000 issued by the Liverpool & London & Globe Insurance Company. The plaintiff, for reply, admits the existence of the two policies mentioned in the answer and denies all other allegations contained in the answer. Subsequently, the plaintiff filed a supplemental petition, alleging, in effect, that since the commencement of the action the matters in controversy had been, by agreement of parties, submitted to John Frass and James Tyler, as arbitrators, to ascertain and adjust the loss, who thereupon adjusted the damages, and made their report in writing, a copy of which is set out in the answer, as follows: The plaintiff alleges that the defendant has not paid the amount of the award, nor any part thereof. The defendant answered the supplemental petition by a general denial. There was a trial to a jury, with a verdict for the plaintiff in the sum of $847.41. On the trial the plaintiff put in evidence the so-called “award.” The defendant objected to its being received in evidence, for the reason that the same is incompetent and irrelevant, which objection was overruled, and an exception taken.
Counsel for plaintiff in error contend that there was no arbitration, and no competent evidence was introduced on the trial to establish an agreement to arbitrate. The only proof tending to show a submission to arbitration was the testimony of the plaintiff, Buckstaff, and that of Mr. Whedon, one of his attorneys. The testimony of Mr. Whedon is to the effect that during the pendency of the suit he entered into an oral agreement with Mr. Ames, one of the attorneys for the defendant, for the submission of the matters in dispute to arbitrators, by the terms of which each party was to select an arbitrator, and the two thus chosen were to ascertain the amount of damages done to the building by the fire, and, if unable to agree, they were authorized to choose a third person to act with them; that, pursuant to such agreement, the cause was continued over a term of court; and that John Fraas and James Tyler were selected as arbitrators, who made report as above set forth. Mr. Buckstaff's testimony touching the matter of arbitration is as follows: The testimony of Mr. Whedon and the plaintiff was objected to as incompetent, immaterial, and irrelevant, and not the best evidence, and not the method of...
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